New Article: Steven L. Schwarcz, Empowering the Poor: Turning De Facto Rights into Collateralized Credit, SSRN Jan 2019. Abstract below:
The shrinking middle class and the widening gap between the rich and the poor threaten social and financial stability. Though sometimes identified as a problem of developing countries, the inability of the poor to use as collateral their de facto rights in property, in order to borrow and start small businesses, impedes upward mobility is nearly all countries. Efforts to solve this problem have failed because they focus on transforming de facto rights into de jure title under property law, which is tightly bound to tradition and protecting vested ownership, and also because some countries have weak or conflicting property-law regimes. Credit, however, is a commercial law concept, and modern commercial law increasingly recognizes important policy goals and realities as a justification for overriding traditional property-law limitations. This Article analyzes why commercial law should allow the poor to use their de facto rights as collateral, thereby empowering them with credit and facilitating a radically new conception of sustainable finance—attracting arm’s length funding, rather than being dependent on limited or unreliable charitable sources.
Call-for-Papers: Poverty in America: The Past, Present, and Future; Rothermere American Institute; University of Oxford; 10-11 May 2019. Full Details here. Submission deadline of March 1, 2019.
My review of Andrew Hammond’s excellent article on In Forma Pauperis Pleadings was published by Jotwell today. As I hope my review makes clear, I think Hammond’s article (forthcoming Yale L.J.) is great and worth reading.
Call-for-papers and Upcoming Conference: Law and Social Change Jam 2019, Millerton, NY, June 25-30, 2019. Priority submission deadline Feb. 28, 2019. Final submission deadline Apr. 25, 2019. Full details at link above.
New Article: Joy Milligan, Subsidizing Segregation, 104 Va. L. Rev. (2018). Abstract below:
What drives administrative officials to enforce the Constitution—or not? This Article recovers a forgotten civil rights struggle that sheds light on that question. Long after Brown v. Board of Education, federal education officials continued to fund segregated schools, arguing that their agency bore no immediate responsibility for implementing the Equal Protection Clause. In the present, that position seems deeply surprising—even at odds with the rule of law. But the administrators did what their agency had been designed to do: extend the federal role in education, without extending federal constitutional rights. Congress engineered the federal Office of Education, predecessor to today’s Department of Education, with the goal of avoiding enforcement of the Constitution’s equality principles. That institutional framework endured, as it did in much of the administrative state, until the Civil Rights Act of 1964 revised it.
The battle to enforce Brown’s principle against the federal government illustrates a basic feature of administrative constitutionalism: Agencies can be designed to serve, or disserve, a broad range of constitutional goals. Any particular agency’s approach to the Constitution will reflect the enduring influence (and variability) of administrative mandate and structure. That truth, encapsulated in the struggle over federal subsidies for segregation, also illuminates a key reason that racial segregation and inequality have been so difficult to uproot: Much of the federal administrative state was initially intended to coexist with discrimination, not combat it.
New Article: Chad Klitzman, College Student Homelessness: A Hidden Epidemic, 51 Colum. J.L. & Soc. Prob. 587 (2018). Abstract below:
This Note examines a surprising obstacle for an increasing number of college students: homelessness. After first offering an overview of legislation in the education field dealing specifically with the education of those experiencing homelessness, this Note then offers insights into how and why people experiencing homelessness tackle both the world of higher education and their respective institutions’ capacities to service their needs both in and out of the classroom. This exploration occurs largely through interview testimony conducted by the author. Many institutions lack the resources needed to service all of a students’ needs (food, clothing, etc.). After exploring the malleability of the higher education and social services systems, this Note argues that certain policy changes — legislation, community work, and change at the institutional level — would be beneficial in combatting this growing homelessness epidemic.
New Article: Lenore Palladino, Shareholder Primacy and Worker Prosperity: A Broken Link, 66 Kansas L. Rev. 1011 (2018).
New Report: Council of Economic Advisers, The Opportunity Costs of Socialism (2018).
[I am posting this after a significant delay because I struggled for a long time with my desire to write a response op-ed; but since I ultimately did not write a response, I am finally posting this. The report seems like nothing but red baiting done by the CEA in advance of the mid-terms, when it was published.]
New Report: Clara Hendrickson, Mark Muro & William A. Galston, Countering the geography of discontent: Strategies for left-behind places, Brookings Institution, Nov. 2018.